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April 17, 2010

Effective early commentary on SCOTUS ruling in Padilla

This weekend's must-read comes via this link at SSRN to a new piece by Margaret Colgate Love and Gabriel Chin concerning the Supreme Court's important decision late last month in Padilla v. Kentucky. The piece is forthcoming in the May 2010 issue of The Champion, and it is titled simply "Padilla v. Kentucky: The Right to Counsel and the Collateral Consequences of Conviction." Here is the abstract:

In Padilla v. Kentucky, 559 U.S. (March 31, 2010), the Supreme Court broke new ground in holding in a 7-2 decision that a criminal defense lawyer had failed to provide his noncitizen client effective assistance of counsel when he did not tell him that he was almost certain to be deported if he plead guilty. It is the first time that the Court has applied the 1984 Strickland v. Washington standard to a lawyer’s failure to advise the client about a “collateral” consequence of conviction – something other than imprisonment, fine, probation and the like, that the court imposes at sentencing. While Padilla’s implications for cases involving deportation are clear, it may also require lawyers to consider many other legal implications of the plea.

The Padilla decision clearly governs cases where a noncitizen is threatened with deportation on the basis of conviction. But if that were all, it would not “mark a major upheaval in Sixth Amendment law,” as the concurring Justices warned. While Padilla’s effects will be felt most immediately in the tens of thousands of criminal cases involving noncitizen defendants, defense lawyers must now concern themselves more generally with the broader legal effects of a criminal conviction on their clients. The systemic impact of this new obligation cannot be underestimated. Padilla may turn out to be the most important right to counsel case since Gideon, and the “Padilla advisory” may become as familiar a fixture of a criminal case as the Miranda warning.

The significant (and valuable) role of California's death penalty in the Chelsea King case

As regular readers may know, I consider the death penalty's role as a catalyst for resoving difficult murder cases via pleas to lesser sentences to be one of the least appreciated and most important justifications for preserving this ultimate punishment. For this reason (and others), I found especially significant and interesting the role that the California death penalty appeared to play in yesterday's plea deal resolution of the high-profile Chelsea King murder.

First, here are the basics from this press report, which is headlined "Sex offender pleads guilty to killing two teen girls: In a deal to avoid the death penalty, John Albert Gardner III admits to the murders of Chelsea King, 17, and Amber Dubois, 14."

A 31-year-old registered sex offender pleaded guilty Friday to murdering two teenage girls in northern San Diego County in a deal that spares him from the death penalty. John Albert Gardner III, who previously served five years in prison for beating and molesting a 13-year-old girl, pleaded guilty to the murders of Chelsea King, 17, and Amber Dubois, 14, both during rape attempts. In exchange for his plea at the hastily arranged hearing, Gardner will be returned to prison for life, without the possibility of parole....

Deputy Dist. Atty. Kristen Spieler told Danielsen that Dist. Atty. Bonnie Dumanis agreed to the plea bargain after "careful consideration of the feelings and opinions" of the victims' families.

In a news conference after the plea, Maurice Dubois, Amber's father, said the agreement allowed "justice and closure" for his daughter. Brent King, Chelsea's father, said lengthy court proceedings would have had a "destructive effect" on their 13-year-old son, Tyler, and the community and distracted from the family's campaign for tougher laws for sex offenders.

Dumanis said that without Gardner's guilty plea, her office would not have had enough evidence to take him to trial for Amber's murder.

Second, consider this effective press analysis, which is headlined "Scholars: Plea deal can work for both sides: Families avoid trail, killer avoids death penalty":

Shaun Martin, a University of San Diego law professor who has been following the case, ... Martin noted that taking the death penalty off the table not only spares prosecutors and family members a trial and the possibility of an acquittal, it also saves the state millions of dollars in legal expenses.

Because death sentences come with an automatic and lengthy appeals process, the state typically spends years on appeals and spends $2 million or more to impose the penalty, he said.

“Look at David Westerfield: He’s still around,” said Martin, referring to the Sabre Springs man convicted of killing Danielle van Dam in 2002. “When you can avoid a trial and have someone put in prison for the rest of their life, that’s not all that different than someone sentenced to death — at least for the next 15 years.”

Finally, let's all reflect on how not only the availability, but also the rareness, of executions in California seems to have been essential to greasing the wheels of justice in this case. Without the prospect of a death sentence John Albert Gardner seem very unlikely to plead guilty (especially in the Amber Dubois case). But without the prospect of 20+ years of capital litigation over a death sentence before an execution, the prosecutors and the family of the victims likely would not have been willing or eager to let Gardner cut this deal.

State prosecutors arguing against rights of victim in Polanski case

As detailed at this link, tomorrow officially starts National Crime Victims’ Rights Week (NCVRW), which has been a special week designated by the US Department of Justice for "promoting victims’ rights and honoring crime victims and those who advocate on their behalf" each April since 1981. Thus, there is a special and sad temporal irony in this notable news story out of California, which is headlined "Prosecutors argue Polanski victim can't alter case." Here are the details:

Roman Polanski's victim cannot ask for the 32-year-old sex case to be dismissed against the fugitive director or otherwise impact the case, prosecutors argued in a court filing Friday.

In a filing to the California Second District Court of Appeal, Los Angeles County prosecutors argue a recent constitutional revision spelling out crime victims' rights does not grant them the power to determine the outcome of criminal cases.

They are also asking the appeals court to reject requests by Polanski's victim, Samantha Geimer, to have the case heard in another county and unseal recent testimony by a former prosecutor.

Prosecutors argue that granting her request for dismissal would "fundamentally alter the way in which crimes are prosecuted." The filing argues that if victims were parties to criminal cases, cases could be dropped either through intimidation, coercion or public pressure.

Geimer petitioned the appeals court to dismiss the case and make the other rulings in a March petition. That filing argued a 2008 constitutional amendment, dubbed Marsy's Law, gives victims more input into criminal cases. Geimer's attorney, Lawrence Silver, has argued twice before that the amendment meant his client's request for dismissal should be considered....

Geimer's filing is a separate appeal from one being pursued by Polanski's attorneys that seeks the appointment of a special counsel to investigate alleged judicial misconduct in the case. The court has not yet ruled on Polanski's appeal.

California voters in November 2008 approved a measure that wrote specific victims' rights into the state constitution, including giving them more notice about criminal proceedings. Geimer has repeatedly sought to have the case dismissed, arguing that renewed interest of the case and media coverage has led to her being repeatedly victimized.

I am troubled, but not at all surprised, that California state prosecutors are aggressively seeking to limit a crime victims' rights when those rights do not serve their interests. Prosecutors are often eager to promote the rights of crime victims when it serves their parochial interests in a particular criminal case, but then are also often likely to disregard or even seek to dismiss the rights of crime victims when it undermines their interests in a particular case.

In light of the official start of National Crime Victims’ Rights Week, I wonder if any officials who work for the federal Office for Victims of Crime-- whose motto is "Putting Victims First" -- have considered filling amicus briefs in support of Samantha Geimer in the Polanski case.

April 16, 2010

Could we get the big juve LWOP Eighth Amendment rulings from SCOTUS next week?

In this post back in October, I flagged what were then the 10 biggest cases to watch for sentencing fans in the new SCOTUS term. The only cases on this list that were argued back in 2009 and that are still not resolved are Graham and Sullivan, the two juve LWOP Eighth Amendment cases from Florida. With this new SCOTUSblog post indicating that the Justices will be handing down opinions on both Tuesday and Wednesday of next week, I am thinking that we might not have to wait much long for rulings in these cases.

That said, given that Graham and Sullivan were argued in November and that there are still some outstanding cases that were argued in October (like the Stevens animal porn case), it is anything but certain that we will get a big Eighth Amendment ruling next week. In addition, it is certainly possible that we could instead get rulings in the worth-watching sex offender cases like Comstock and Carr. In short, SCOTUS fans, stay tuned.

The New York Post has this new report headlined "Cameron Douglas getting public sentencing." Here are the details:

Cameron Douglas should start getting ready for his close-up. A judge today ordered a public sentencing for the drug-dealing Hollywood heir, whose lawyers sought to have his punishment imposed in private on Tuesday.

Manhattan federal Judge Richard Berman [no relation] also told defense lawyers to re-file their inch-thick plea for leniency -- without much of the blacked-out editing job that kept huge portions hidden from public view.

The ruling came after The Post objected to the defense's request to keep the sentencing private and to its desire to hide many portions of the plea for leniency. Among the information withheld is a letter to the judge from Douglas' Oscar-winning dad, Michael Douglas, who's set to star in a sequel to his hit 1987 film "Wall Street."

"The rationale for the court's determination is that the public has a right of access to criminal judicial proceedings and documents. And, the right of access extends to sentencing proceedings in criminal cases," Berman wrote. "Relatedly, the public has a right to know, with limited exceptions, the bases for the court's sentencing determinations."

Under terms of the judge's order, Douglas's lawyers can keep secret only limited details, such as home addresses and phone numbers, medical records and "information regarding any individual's cooperation with the government, if any."

Douglas' shrink has already revealed that Douglas began working as an informant after he was busted last summer for selling crystal meth. He faces a mandatory 10 years in the slammer unless prosecutors file a motion allowing Berman to waive the minimum based on the value of his cooperation.

Speaking as both a sentencing academic and a sentencing blogger, I am pleased with this ruling.

Jason M. Pape pleaded guilty to one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and, on appeal, challenges his sentence. He was sentenced to 90 months’ imprisonment followed by 20 years’ supervised release. He now claims that the district court failed to address his non-frivolous arguments in support of a two-year sentence including a plea for leniency based on his personal history as an upstanding member of his community and his exceptional family responsibilities for his children, some of whom have disabilities. In addition, Pape contends that the district court failed to address his argument that disparities in the length of pornography sentences among different districts in Wisconsin and the purported lack of careful empirical study underpinning the child pornography Guidelines suggest that a sentence over two years is too high.

We affirm because the district court adequately considered Pape’s arguments about his history and parenting responsibilities. Moreover, a district court is presumed to have considered arguments about unwarranted disparities if, as here, it sentences within or below the Guidelines, see United States v. Bartlett, 567 F.3d 901, 908 (7th Cir. 2009). And, although district courts are certainly free to disagree with the child pornography Guidelines as applied to a particular case as long as the sentence imposed is reasonable, the district court here did not abuse its discretion when it implicitly rejected the imposition of a much lower sentence based on a disagreement with the Guidelines range.

The Commission received comment from Congress, the judiciary, the executive branch, members of the defense bar, interested organizations, and citizens in response to its request for public comment on proposed amendments to the sentencing guidelines (see 75 FR 3525).

The link takes you to here to a page with what looks like more than 100 written comments on all the major issues began tackled by the USSC in this year's guideline amendment cycle. And, on that front, I have heard various unofficial reports about amendments that have been now approved by the Commission. But I have been hoping/waiting (impatiently) for an official press release from the USSC about its actions so that I can be confident I am reporting the details accurate.

The question in the title of this post is prompted by this (important?) new Washington Post article, which is headlined "White House complains about CBS News blog post saying that possible Supreme Court nominee is gay." Here is how the article begins:

The White House ripped CBS News on Thursday for publishing an online column by a blogger who made assertions about the sexual orientation of Solicitor General Elena Kagan, widely viewed as a leading candidate for the Supreme Court.

Ben Domenech, a former Bush administration aide and Republican Senate staffer, wrote that President Obama would "please" much of his base by picking the "first openly gay justice." An administration official, who asked not to be identified discussing personal matters, said Kagan is not a lesbian.

CBS initially refused to pull the posting, prompting Anita Dunn, a former White House communications director who is working with the administration on the high court vacancy, to say: "The fact that they've chosen to become enablers of people posting lies on their site tells us where the journalistic standards of CBS are in 2010." She said the network was giving a platform to a blogger "with a history of plagiarism" who was "applying old stereotypes to single women with successful careers."

The network deleted the posting Thursday night after Domenech said he was merely repeating a rumor. The flare-up underscores how quickly the battle over a Supreme Court nominee -- or even a potential nominee -- can turn searingly personal. Most major news organizations have policies against "outing" gays or reporting on the sex lives of public officials unless they are related to their public duties.

A White House spokesman, Ben LaBolt, said he complained to CBS because the column "made false charges." Domenech later added an update to the post: "I have to correct my text here to say that Kagan is apparently still closeted -- odd, because her female partner is rather well known in Harvard circles."

I find notable for a number of reasons this story surrounding the perceived front-runner to replace the retiring Justice Stevens. Most fundamentally, I am intrigued by the apparent eagerness of White House officials to make assertions about the sexual orientation of Solicitor General Elena Kagan, rather than simply asserting that sexual orientation is not directly relevant to judicial philosophy and the day-to-day work of a Supreme Court Justice. That decision prompts the question in the title of this post on which I am eager for (respectful) reader reaction.

Did any Tea Party protests complain about wasteful criminal justice spending?

The title of this post is prompted in part by this press release from Families Against Mandatory Minimums, which is headlined "On Tax Day, FAMM Tells Fiscal Watchdogs Not to Overlook Wasteful Prison Spending; Growing Population of Nonviolent Inmates Pushes BOP Budget over $6 Billion." Here are excerpts:

Leading taxpayer advocates in Washington and across the states have begun speaking out about the high cost of misguided sentencing policies. In testimony before the House Judiciary’s Crime Subcommittee, Americans for Tax Reform President Grover Norquist said, “Viewed through the skeptical eye I train on all other government programs, I have concluded that mandatory minimum sentencing policies are not worth the high cost to America’s taxpayers.”

At the same congressional hearing, David Keene, chairman of the American Conservative Union said, “Perhaps the most successful weapon in the budget hawk’s arsenal is cost-benefit analysis....Oddly, we have not always insisted on such analysis in criminal justice matters, including sentencing. We need to start.”

And, in two states where FAMM is leading reform efforts, the Massachusetts Taxpayers Foundation and Florida Tax Watch have both expressed support for cost-effective sentencing reforms.

As I have suggested in a number of prior posts, one would think that eventually some of the anti-government and anti-spending rhetoric coming from the folks in the Tea Party movement should prompt significant scrutiny of how much taxing and spending is done for a variety of (bloated?) state and federal criminal justice programs?

April 15, 2010

A life sentence for a woman who forces a teenage boy to touch her breasts!?!?!

The exclamation/question that titles this post is my initial response to this remarkable local press story that a helpful student sent my way. This press report discussed a remarkable local sentence handed down earlier this week in Nevada under the headline "T.F. woman sentenced to life for lewdness charge." Here are the remarkable details:

A Twin Falls woman convicted of forcing a 13-year-old boy to touch her breasts was sentenced Monday to life in prison. Michelle Lyn Taylor, 34, was convicted of lewdness with a minor under 14 in November after a week-long trial in Elko County, Nev., District Judge Mike Memeo’s courtroom.

With the conviction, Taylor faced a mandatory life sentence, and Memeo set parole eligibility after 10 years, the minimum sentence. If released on parole she must register as a sex offender and will be under lifetime supervision.

The district attorney’s office did not offer a plea agreement in the case, said public defender Alina Kilpatrick, who argued the sentence is unconstitutional and doesn’t fit the crime. “The jury was not allowed to know the potential sentence in this case and the Legislature doesn’t know the facts,” she said, alluding to the minimum sentence set by the Legislature in Nevada Revised Statute.

Kilpatrick said despite the parole eligibility after 10 years, there should be no mistake that it’s a life sentence for Taylor. “She is getting a greater penalty for having a boy touch her breast than if she killed him,” she said.

After he sentenced her, Memeo said he was bound by state statute to impose the life sentence, but said he isn’t sure why the prosecution chose to charge her under that statute. District Attorney Gary Woodbury could not be reached for comment.

Taylor, who lived in Jackpot, Nev., at the time of the crime, kissed a friend’s child, forced him to touch her breast and asked him to have sex with her in February 2008. Taylor claimed she was intoxicated and doesn’t remember what happened that night. She told jurors she roughhoused with the boy, but didn’t force him to touch her inappropriately.

Based on the facts stated here, this case sounds like a remarkable test case for the reach and limits of the Eighth Amendment in non-capital punishment settings. But I cannot help but think there must be more, perhaps a lot more, to this story.

Way below-guideline sentence for "drug dealer in a lab coat" prompts lots of questions

This Los Angeles Times article reporting on a federal sentence handed down yesterday in California, which is headlined "4-year prison term ordered for 'drug-dealing doctor'," implicates nearly every challenging post-Booker federal sentencing issue that has been confounding federal judges and practioners for the last 5+ years. Here are the fascinating details:

A Duarte physician who prosecutors said was "nothing more than a drug dealer in a lab coat" was sentenced to four years in federal prison Wednesday for prescribing powerful and highly addictive pain killers to people who had no medical need for the drugs.

The sentence was far less than the 17 years prosecutors had been seeking for Dr. Daniel J. Healy, and well below federal sentencing guidelines that called for a term of 17 to 22 years. Monrovia Police Det. Rich Doney, who worked the case with investigators from the Drug Enforcement Administration, called the sentence "a mockery of justice." "Some of his victims will spend longer than that in rehab," Doney said.

Healy, clad in a green jail-issue jacket and shackled at the waist and ankles, showed no emotion as the sentence was announced. Before imposing the sentence, U.S. District Judge Manuel L. Real said he struggled with balancing the seriousness of Healy's criminal conduct with his lack of a prior criminal record and the legitimate aspects of his medical practice. "He's not the ordinary, everyday drug merchant which we see in this court," Real said.

Real seemed conflicted as he gave a long, at times meandering address about the defendant. At one point Real said, "The evidence shows that Dr. Healy was concerned about the addictions of his patients." Moments later, he said, "Dr. Healy was in this for the money. There's no question about that."

Regardless of Healy's motivation, Real noted that as a result of his conviction, Healy's career as a doctor -- and the financial benefits that came with it -- was over. "Dr. Healy will never be able to do what he's done again when he's released from prison," Real said.

Defense attorney Roger J. Rosen said Healy was thankful for Real's "measured, thoughtful" sentence that took into account all aspects of the case. "He did what a judge was supposed to do," Rosen said.

Healy, according to prosecutors, led the nation in 2008 in ordering hydrocodone -- painkillers sold under the brand names Vicodin and Norco. They accused Healy of wildly overprescribing and selling the drug, for which there is a thriving black market, particularly among young adults. Some of Healy's patients were in their late teens and early 20s and had been friends of Healy's sons. Some patients, court documents state, would leave with hundreds or even thousands of pills at a time.

One man who was observed by police entering Healy's clinic before it opened for the day was pulled over a short time later and had 12 commercial-size bottles of Vicodin and three containers of Xanax in his car -- 7,500 pills in all. The man told police he'd just paid Healy more than $5,000 cash for the drugs, and was planning to sell them for profit, according to court records.

Healy pleaded guilty in July to intentionally distributing oxycodone without a legitimate medical purpose. The remaining 16 counts against him were dropped in exchange for the plea. In addition to imposing the four-year prison term, Real sentenced Healy to 10 years supervised release, 5,000 hours of community service and a $150,000 fine. "The end result is that this particular drug-dealing doctor is off the streets," said Assistant U.S. Atty. David Herzog, who prosecuted the case.

Here are just a few follow-up questions of both theory and practice on which I would love reader input via the comments:

1. Do folks who believe strongly in retributivist theories of punishment agree that this sentence makes "a mockery of justice"?

2. Do folks who believe strongly in utilitarian theories of punishment agree that this sentence makes "a mockery of justice"?

4. Do folks think the addition of 5,000(!) hours of community service (which is roughly 2.5 years of indentured servitude) makes the relatively short prison term more reasonable or should that part of the sentence be viewed as insignificant in a post-Booker reasonableness analysis?

Do all felons even forfeit their property rights when guns are involved?

Regular readers know that I am intrigued by the post-Heller jurisprudence which suggests that all felons (and even some misdemeanants) forfeit forever their Second Amendment right to armed self-defense in the home simply by virtue of a conviction. Now I see from this intriguing new post at Volokh, which is headlined "The Second Amendment and the Takings Clause," that the feds and some courts seem to believe that felons (and presumably also some misdemeanants) forfeit forever their property rights in any gun simply by virtue of a conviction. Here is the start of the Eugene Volokh's post noting a recent ruling on this topic:

Felons can’t lawfully possess guns — does it mean they can’t even arrange for their sale, and that the court may just order them destroyed? That seems to have been the government’s view in United States v. Brown (D.N.H. Apr. 9, 2010), and at least one court has apparently taken this view, but the court in this case disagreed (some paragraph breaks added):

Before he was indicted, Edward L. Brown, a defendant in the underlying criminal tax-fraud and money-laundering case, owned a number of firearms. As a condition of his release on bail, Brown voluntarily surrendered those firearms and agreed both that the firearms would be held by Riley’s Sport Shop, Inc., pending resolution of the charges, and that he would pay all storage charges incurred. Brown was subsequently convicted of several felonies, all unrelated to the surrendered firearms....

The government relies on several decisions from other circuits and districts that seem to adopt the proposition that a convicted felon cannot lawfully divest himself of mere legal title to firearms that he can no longer lawfully possess, without thereby “constructively possessing” those firearms. Those decisions stretch the concept of “constructive possession,” as the term is used in the criminal statute prohibiting possession by felons (18 U.S.C. § 922(g)), much too far, in my view, essentially equating criminal constructive possession with even the most minimal exercise of an indicia of ownership-transferring legal title (and, ironically, thereby divesting title to personal property that the owner may not lawfully possess).

The government’s main point ... is this: A person who lawfully owns, say, a valuable gun collection just before a jury returns an unrelated felony guilty verdict (e.g., for mail fraud) can, thereafter, no longer sell, give away, or transfer legal title to that collection. But, strictly speaking, the decisions relied upon by the government are not so clear — they do generally accept that a defendant in such a predicament cannot unilaterally direct or “dictate” the specific disposition of owned firearms, but they do not, for example, hold that title to the firearms cannot be conveyed, or that a court cannot order an appropriate disposition of such firearms, for the benefit of the defendant.

NY Times editorial calls for sensible prisoner census counting

This morning's New York Times has this editorial headlined "A Fairer Way to Count," which focuses on how prisoners get counted. Here are excerpts:

Maryland struck a blow for electoral fairness this week with a new law requiring that prison inmates be counted at their home addresses when legislative districts are redrawn after the 2010 census. Other states should follow.

Counting inmates as residents — prison-based gerrymandering — inflates populations and exaggerates the power of the mainly rural districts where prisons tend to get built. It undercuts the power of the mainly urban districts where the inmates come from, their families live, and to which they return after release....

Lawmakers in Maryland acted after learning how the prison count had distorted their political landscape. In one state legislative district, nearly a fifth of the population are inmates, most of whom hail from elsewhere in the state. In one county commission district, inmates account for 64 percent of the population.

Studies have shown that many states have districts that would probably be illegal had they not been padded with inmates who often come from hundreds of miles away. More than a half dozen states seem poised to follow Maryland’s example. That is an important start. The best solution is for the Census Bureau to begin counting inmates at their homes beginning with the 2020 census.

April 14, 2010

Intriguing Ninth Circuit ruling on RDAP eligibility claim

The federal residential drug abuse program (RDAP) is rarely discussed and, I believe, even more rarely the subject of litigation. For this reason (and others), I found intriguing today's Ninth Circuit paenl ruling in Mora-Meraz v. Thomas, No. 09-35413 (9th Cir. Apr. 14, 2010) (available here). Here is how it starts:

Antonio Mora-Meraz (“Mora-Meraz”), a federal prisoner in the custody of the United States Bureau of Prisons (the “Bureau”), appeals the denial of his § 2241 petition for habeas corpus relief. He was convicted of possession of cocaine with the intent to distribute, and was sentenced to 120 months of incarceration. In the district court, he challenged the Bureau’s decision to deny him eligibility for admission to the Residential Drug Abuse Program (the “RDAP”) at the Federal Correctional Institution at Sheridan, Oregon.

The RDAP is an intensive drug abuse program requiring a minimum of 500 hours of treatment apart from the general prison population. Program Statement 5330.10, Chapter 5.1. The program utilizes both individual and group therapy sessions and lasts for six to twelve months. Id. Additionally, individuals enrolled in the RDAP are required to complete transitional courses in a community-based program once placed in a halfway house or on supervised release. Id. The RDAP is attractive to prisoners because, as an incentive to participate in substance abuse rehabilitation, it grants up to one year sentence credit to those who successfully complete it.

Before the district court, Mora-Meraz claimed that the Bureau’s unwritten requirement that he present documented proof of substance use within twelve months of imprisonment was invalid because it was not subject to notice and comment as required by the Administrative Procedure Act (“APA”), and because the Bureau failed to articulate a rational explanation for the requirement. We hold that the Bureau did not run afoul of the APA’s procedural requirements and affirm the district court’s denial of Mora-Meraz’s petition for habeas corpus.

Judge orders Nacchio to appear in court to waive his right to appear in court

Somewhere Franz Kafka is smiling (or crying). As detailed in this Denver Post article, a prominent white-collar defendant has been ordered to appear in federal court in order to be able to effectively waive his right to appear in federal court:

Joe Nacchio, currently serving time in Minersville, Pa., for criminal insider trading, could soon make a public appearance in Denver — in prison clothes.

A federal judge Tuesday ordered the former Qwest chief executive to appear at a hearing in U.S. District Court in Denver to ensure that Nacchio's planned waiver of his right to attend his resentencing is "voluntary and informed."

U.S. District Judge Marcia Krieger said she wants Nacchio to be transported "at the earliest possible time," though a date for the hearing has not been set.

Nacchio began serving a six-year prison term in April 2009. In July, an appeals-court panel ordered a resentencing for Nacchio because the trial judge erred during the initial sentencing in 2007. The ruling means Nacchio's prison term could be shortened.

Nacchio, 60, would likely return to Denver via the Justice Prisoner and Alien Transportation System's private aircraft — otherwise known as Con Air. He would be held at a local detention center based on space availability, said Dave Floyd, a spokesman for the U.S. Marshals Service. Floyd couldn't provide cost estimates.

Nacchio would probably be required to attend the hearing in prison garb because he won't appear before a jury, said former federal prosecutor Rick Kornfeld. Defendants in custody may appear in civilian clothes if a jury is present.

Nacchio attorney Sean Berko witz didn't respond to requests for comment Tuesday. In March, Berkowitz indicated in a filing that Nacchio planned to waive his right to appear at the resentencing. The Justice Department objected, stating that Nacchio's presence would help achieve some of the goals of sentencing, such as "promoting deterrence."

Krieger said in Tuesday's order that Nacchio has the legal right to waive his appearance, but the waiver "is not effective unless it is both informed and voluntarily made." Berkowitz has said Nacchio "is willing to execute whatever document the court deems appropriate to reflect his knowing and voluntary waiver."

But Krieger cited several reasons for mandating Nacchio's presence: He has changed attorneys since the initial sentencing. He is currently incarcerated. And Krieger is overseeing the resentencing and not the trial judge, Edward Nottingham, who handed down the initial sentence but has since resigned.

Judge Krieger's full opinion in support of his order can be downloaded here:

Prosecutors defend who gets sent to Arizona's prisons

This interesting local article, which is headlined "Most state inmates committed violent crimes: Officials say state gets money worth for $1B corrections budget," reports on an notable effort by Arizona state prosecutors to defend their state's high prison population. Here are excerpts:

A new study of the Arizona prison population reports that nearly all inmates have had prior convictions or committed violent felonies.

The Arizona Prosecuting Attorney's Advisory Council commissioned the study, titled "Prisoners in Arizona: A Profile of the Inmate Population." "Who is it who's locked up?" Pima County Attorney Barbara LaWall asked at a March 30 news conference. "It's just who you'd expect."

Citing the 91-page analysis, LaWall said at least 94 percent of state inmates are repeat or violent offenders. The figure represents more than 38,000 of the estimated 40,500 people incarcerated in state and private prisons.

Figures from the study show that 52 percent of inmates, some 21,200 prisoners, have been convicted of violent offenses. The study also notes that as much as 83 percent, or 33,896 of convicts, have one or more felony convictions on their records.

Law enforcement officials say the study proves that only the most violent or problem criminals fill state prisons. "A very small minority of folks can be classified as non-violent or fist-time offenders," LaWall said.

The study, as well as comments by LaWall and study author Daryl R. Fischer, may be directed at critics of the state's mandatory minimum sentencing laws. Such laws lay out sentencing guidelines for numerous crimes, including drug offenses and drunk driving. "The myth that we're filling our prisons with first-time drug offenders is not true," Fischer commented at the news conference.

A mathematician and longtime research manager with the Arizona Department of Corrections, Fischer wrote the study for the Arizona Prosecuting Attorney's Advisory Council, which paid about $24,000 for it. Fischer retired from the department of corrections in 2007....

According to the "Prisoners in Arizona" study, the state locks up about 567 people in 100,000. Only Alabama, Louisiana, Mississippi, Oklahoma and Texas incarcerate people at a greater rate.

The study also note the state now spends about $1 billion per year on its corrections department. "The state is getting its money worth for every tax dollar it spends on the prison system," Fischer said. He noted that while crime has fallen by 42 percent since 1995, the prison population has risen by 18 percent.

The report discussed in this article, "Prisoners in Arizona: A Profile of the Inmate Population," is available at this link. The report include a lot of interesting data, and that data might readily be "spun" in any number of ways.

For example, the report asserts in its final numerical summary that "94.2% of inmates are violent or repeat offenders" and further asserts that, even among thousands of non-violent first offender, "97.2% exhibit factors either predisposing the present incarceration or weighing against early release." These data certainly suggest that the vast majority of Arizona prisoners have a good reason to be in prison. But they also suggest that there are still dozens (and perhaps hundreds) of non-violent first offenders behind bars in Arizona who have factors that neitherpredispose the present incarceration nor weigh against early release. Now that this report helps identify who these non-violent first offenders may be, I wonder if these unnecessarily incarcerated persons will be able to get released early.

April 13, 2010

"Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice"

The title of this post is the title of this notable new paper from Professors Dan Markel and Chad Flanders now appearing on SSRN. Here is the abstract:

In recent work, various scholars have challenged retributive justice theorists to pay more attention to the subjective experience of punishment, specifically how punishment affects the experiences and well-being of offenders. The claim developed by these “subjectivists” is that because people’s experiences with pain and suffering differ, both diachronically and inter-subjectively, their punishments will have to be tailored to individual circumstances as well.

Our response is that this set of claims, once scrutinized, is either true, but of limited significance, or nontrivial, but unsound. We don’t doubt the possibility that different people will react differently to the same infliction of punishment. It seems foolish to deny that they will (although such claims can be exaggerated). What we deny, in the main, is that this variance in the experience of punishment is critically relevant to the shape and justification of legal institutions meting out retributive punishment within a liberal democracy.

The State of Maine appeals from a judgment of the Superior Court (Franklin County, Murphy, J.) denying its motion to correct the sentence that the court imposed on Gerald W. Gilman following his conviction at a bench trial for operating after habitual offender revocation.... The State contends that the court imposed an illegal sentence when it sentenced Gilman to less than the minimum mandatory two-year term of imprisonment required by the statute. The court did so after finding that the statute as applied to Gilman violated article I, section 9 of the Maine Constitution, which requires that “all penalties and punishments shall be proportioned to the offense.” Me. Const. art. I, § 9.

Gilman cross-appeals, contending that, in addition to violating article I, section 9 of the Maine Constitution, the mandatory sentencing provision also violated his equal protection and due process rights....

Because we agree with the State’s contention that the sentence imposed on Gilman was illegal, and find no violation of Gilman’s constitutional rights, we vacate only the sentence and remand for resentencing.

Catharine Miller pled guilty to one count of traveling in interstate commerce to engage in prohibited sexual conduct with a fourteen-year-old girl in violation of 18 U.S.C. § 2423(b). At her sentencing hearing, the district court overruled Miller’s objections to the presentence report and adopted the report’s recommended Guidelines sentencing range of seventy to eighty-seven months. The government argued for a sentence above the Guidelines range. The court sentenced Miller to a 120-month prison term. Miller has appealed her sentence. We vacate the sentence and remand for resentencing.

Because there are lots of elements to the Miller case and the Seventh Circuit's ruling, I am disinclined to assert that any single factor explains why this particular defendant prevailed on her sentencing appeal. But, as evidenced by the word I have emphasized in the title of this post, I do think it is worthwhile to ponder, at least briefly, whether this appeal obviously comes out the same way if the defendant's name was Charles Miller.

Who might sentencing fans want added to the latest SCOTUS short list?

The question in the title of this post is prompted by this new National Law Journal article headlined "White House Said to Be Widening Search for High Court Nominee." Here is how the piece starts:

Washington's spin machine cycled into high gear Monday, churning out a new set of names as possible contenders to fill Justice John Paul Stevens' seat on the U.S. Supreme Court. For months, the list of hopefuls has been thought to include Solicitor General Elena Kagan, Judge Diane Wood of the 7th U.S. Circuit Court of Appeals, Judge Merrick Garland of the D.C. Circuit, as well as Michigan Gov. Jennifer Granholm and Homeland Security Secretary Janet Napolitano.

On Monday, the Associated Press reported that Sidney Thomas, a judge on the 9th U.S. Circuit Court of Appeals, "was one of about 10 people under serious review." The AP confirmed that Wood, Garland, Kagan, Granholm and Napolitano were on the list. The wire service, citing an administration official, added former Georgia Chief Justice Leah Ward Sears to the list. ABC News also reported that Sears is under serious consideration. Other names floated Monday by various news outlets and blogs included: Secretary of State Hillary Rodham Clinton; Sen. Sheldon Whitehouse, D-R.I.; and Secretary of Commerce Gary Locke, a Democrat and former governor of Washington.

Though speculation about the potential nominee always widens in the day or two after a justice's retirement, the flurry of new names may also signal a genuine effort by the White House to broaden its list. As one Washington insider close to the nomination process said Monday, "I can almost hear [Obama] saying, 'Who else you got?' other than Kagan, Wood, Garland ... he has to at least go through the motions of a larger search."

In lots of prior posts in conjunction with other SCOTUS opennings, I have long pushed the idea that SCOTUS jurisprudence (and especially sentencing jurisprudence) might be much improved if more members of the Supreme Court had experience as a district judge (or at least had not spent a lot of years as a circuit judge). As I encourage readers to suggest (realistic?) potential nominees, let me be content to link to just some of this prior commentary rather than reiterate these (tired?) points.

April 12, 2010

The title of this post is the title of this notable new paper from Melissa Hamilton now appearing on SSRN. Here is the abstract:

This article argues that the new preventive law focus in sex offender laws is largely ineffective and too costly to personal liberty. The application of sex offender laws involving civil commitment, sex offender registration, and residency restrictions is often based on an individualized analysis of future dangerousness, i.e., the risk the defendant will sexually recidivate. In assessing future dangerousness, experts and courts place heavy emphasis on the use of actuarial tools, basically checklists that mental health experts use to derive statistical estimates of risk. This article provides substantiation that actuarial tools, while enjoying the imprimatur of science, suffer from significant empirical faults.

Yet courts are largely abandoning their gatekeeping roles in accepting the experts’ testimony using actuarial tool predictions of risk without critical review as required by the Daubert and Frye evidentiary standards. The paper theorizes that this is likely a pragmatic strategy considering the current political and public thirst for retribution against sexual predators. But, use of this empirically-challenged science exacerbates the practice of applying sex offender restrictions to inappropriately labeled individuals. Finally, this article takes advantage of the interdisciplinary trend of engaging social science with the law on expert evidence. More specifically, it offers an empirical assessment of future dangerousness opinions within the Daubert/Frye scientific evidence frameworks. The significance of the conclusion reached in this article is clear: if the law continues to rely upon suspect science that results in the wrong individuals being subject to liberty-infringing sex offender laws, then the drain on criminal justice resources will leave the truly dangerous offenders without sufficient supervision at the risk of public safety.

Are federal sentences in many high-profile white-collar cases now much too harsh?

The question in the title of this post is prompted by this notable new post by Professor Peter Henning over at the New York Times DealBook under the headline "Sentences Get Harsher in White-Collar Cases." Here is part of Peter's discussion:

The 50-year prison term given to a one-time business mogul, Thomas J. Petters, is the latest in a string of harsh punishments imposed on defendants convicted of orchestrating frauds. Twenty years ago, a sentence of more than five years for a white-collar offender was rare, and most sentences were measured in months, not years.

The sentence meted out to Mr. Petters last week is similar in severity to the 150 years given to Bernard L. Madoff for defrauding investors of tens of billions of dollars in his vast Ponzi scheme, and it is the latest signal that many defendants, at least in high-profile cases, are looking at prison terms that will amount to life behind bars.

Even in less notorious cases, the prison terms for financial crimes have been moving higher, raising questions whether sentences once reserved for violent criminals are appropriate for white-collar defendants....

It is hard to justify sentences like the 50 years imposed on white-collar defendants on the need to protect society from future harm. It is unlikely that someone like Mr. Petters would ever be in a position to defraud investors again, and he presented no physical threat. Whether other potential offenders will be deterred because of the sentence is also open to question, because many white-collar defendants often do not start out planning to defraud investors or customers, but pursue the fraud to avoid disclosing losses from poor business decisions. What can start out as a small lie can burgeon into a huge Ponzi scheme, as Mr. Madoff demonstrated.

The tough sentences may be more of a reflection of the conduct of the individual defendants and their hubris in taking advantage of investors. Courts often express a desire to send a message to the community that financial crimes are deserving of the same significant punishment more commonly given to drug dealers and violent offenders because the harm is just as great....

Whether harsh sentencing is a good thing is open to debate, especially when the cost to society from increased incarceration of criminals strains budgets at every level of government.

Unlike drug or organized crime defendants, white-collar offenders often claim innocence because they were unaware of any wrongdoing, a position that can infuriate a judge. Mr. Petters testified at trial that he was misled by other executives as his company, an assertion that the sentencing judge found was “unbelievable — let’s leave it at that.”

Faced with a distinct lack of contrition, coupled with evidence that the defendant abused a position of authority to mislead investors, judges often feel they need to impose long sentences to let those in the upper reaches of society know that they will suffer the consequences of their conduct.

As more financial frauds come to the surface, do not be surprised to see more white-collar defendants receive long prison sentences. This does not appear to be a trend that will abate any time soon.

"Non-violent offenders clogging state prisons"

The title of this post is the headline of this commentary in a local Pennsylvania newspaper. Here is how it starts:

Pennsylvania's prison system continues to be impacted by costly overcrowding, while 20 other states are reducing their inmate populations.

Pennsylvania currently has 51,000 inmates in a system designed to accommodate 43,000. To ease the overcrowding, Pennsylvania has begun sending 2,000 inmates to prisons in Virginia and Michigan at a cost of about $42 million a year. At the same time, the commonwealth is planning to build four new prisons estimated to cost $800 million.

In contrast, New York's inmate population has decreased by 13 percent. New York officials are considering closing one or more prisons. This is attributed to alternative sentencing, intensive drug treatment, and mental health programs.

Michigan has reduced its inmate population by 8 percent. It has closed eight prisons and has 3,260 fewer inmates than it had three years ago. This is attributed to drug and alcohol counseling, and job training, all outside the prison.

What makes Pennsylvania so different from New York and Michigan? In the 1980s and 1990s, tough-on-crime laws such as mandatory minimum sentences were designed to remove drug dealers and violent felons from society. As it has turned out, however, Pennsylvania now has the second-longest sentences for non-violent crimes. Yet the major restorative benefit from incarceration occurs in the first year.

Mandatory minimums have stripped discretion from judges. The majority of Common Pleas judges surveyed a few years ago argued that mandatory minimum sentences for nonviolent crimes were not an effective deterrent. In October 2007 the Pennsylvania House formed a committee of legislators, judges, district attorneys, and public defenders to study mandatory minimum sentencing structures. The findings (available at Web site http://pcs.la.psu.edu) uncovered a number of "unintended consequences."

The Department of Corrections has stated that Pennsylvania's state prisons are exploding with non-violent offenders, which include low-level drug users, drunk drivers, parole violators and shoplifters. The time for studies has ended. The time for reform is now.

April 11, 2010

Is Justice Stevens the greatest (or most significant or ___) sentencing Justice of all time?

Especially given that Justice Stevens has three more months of important work left in his Supreme Court tenure, I am disinclined to spend too much time right now reviewing his extraordinary record and legacy as a Justice. Nevertheless, I think it is worth noting even now that Justice Stevens necessarily has a unique and special place in the history of sentencing jurisprudence. Let me explain.

Justice Stevens will retire this year as the only Justice to have had a central and enduring role in both the revolution of capital sentencing doctrine through the Eighth Amendment jurisprudence of Gregg and its progeny and in the revolution of non-capital sentencing doctrine through the Sixth Amendment jurisprudence of Apprendi and its progeny. For this reason alone, it seems reasonable to call Justice Stevens the greatest -- or the most significant or some other accolade -- sentencing Justice of all time.

Does this sound right, dear readers? Is there a more fitting (and perhaps less controversial) adjective than "greatest" to describe Justice Stevens' work in sentencing cases over the last 35 years?

Now available via SSRN is this important new piece by Professor Erica J. Hashimoto titled "Class Matters." As its abstract highlights, this piece gives overdue attention to a very important aspect of modern criminal justice realities:

Poor people constitute one of the most overrepresented categories of people in the criminal justice system. Why is that so? Unfortunately, we simply do not know, in large part because we have virtually no information that could provide an answer. As a result of that informational vacuum, policymakers either have ignored issues related to socioeconomic class, instead focusing on issues like drug addiction and mental illness as to which there are more data, or have developed fragmented policy that touches on socioeconomic class issues only tangentially. The bottom line is that without better data on the profile of poor defendants, coherent policy to address socioeconomic class issues simply will not be enacted. Because we lack data on socioeconomic class, we also cannot ascertain whether the system enforces criminal laws equally or whether it targets poor people. The inability to prove (or disprove) class discrimination prevents policymakers from enacting any solutions and leads to mistrust in the system.

This Article highlights the potential beneficial uses of general data on criminal defendants, and data on socioeconomic class of criminal defendants in particular. It goes on to document the data we currently have on socioeconomic class of criminal defendants, and the shortcomings both in our analysis of that data and in our data collection. Finally, the Article provides a roadmap for how states and the federal government should collect and analyze data on the socioeconomic class of criminal defendants.

A (record?) 30-years on death row for Nevada killer

Though I am not sure if this marks a record, but this local article notes that a death row defendant in Nevada is marking a notable milestone. The piece is headlined "Inmate on death row for nearly 30 years," and here is how it begins:

Jim Monahan has been wondering a lot in recent days why Samuel Howard is still alive after almost 30 years on Nevada's death row.

"My mother has died. Most of my dad's friends have died, and he continues to live," Monahan said. "He has outlived almost everyone in my family. It makes no sense financially for the state of Nevada to keep paying for these guys to stay alive."

"Executing Howard will not bring my father back," Monahan said, "but may bring a small amount of closure to me and my family."

March 27 marked the 30th anniversary of the day Las Vegas police arrived at 12-year-old Jim Monahan's door and told him, his sister and mother that his father had been found shot to death in a van parked along Boulder Highway.